In 1977, the Supreme Court ruled that the death penalty could not be imposed for the rape of an adult woman. The penalty was, the court ruled, disproportionate to the crime and therefore forbidden as cruel and unusual punishment under the Eighth Amendment.In Coker, Georgia was the only state with the death penalty for the rape of an adult. The case largely preceded the very intense political activity aimed at making people take rape much more seriously than they had before. Here's Justice White's description of the rape:
"Life is over for the victim of the murderer," Justice Byron R. White wrote for the majority. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."
The defendant in that case, Ehrlich Coker, escaped from a state prison in Georgia where he was serving time for a murder and two rapes. He soon raped another woman in front of her husband. He was sentenced to death for that last crime.
Dissenting from the majority decision to overturn Mr. Coker's death sentence, Chief Justice Warren E. Burger wrote that the ruling "prevents the state from imposing any effective punishment upon Coker for his latest rape."
... In recent decisions barring the execution of juvenile offenders and the mentally retarded, the court took careful stock of state laws and trends in state legislatures to evaluate whether a societal consensus existed to permit or bar capital punishment in given classes of cases.
Trey Walker, chief executive assistant to Attorney General Henry McMaster of South Carolina, said in an interview yesterday that "there will be more and more" laws making sex crimes against children capital offenses.
"This is something the Supreme Court takes into account," Mr. Walker said. "There is not much doubt that this law would be upheld and found constitutional."
Coker then raped Mrs. Carver. Soon thereafter, petitioner drove away in the Carver car, taking Mrs. Carver with him. Mr. Carver, freeing himself, notified the police; and not long thereafter petitioner was apprehended. Mrs. Carver was unharmed.Mrs. Carver was unharmed. How many law professors have read that line sarcastically in class? I know I have. I can't imagine White writing like that 10 years later, after all the discussion of rape that took place in that time. Brownmiller's "Against Our Will" was published in 1975 and the author was one of a collection of women who were named Time magazine's "Persons of the Year" in 1975, two years before Coker, so I still have to say that the Court, at the very least, had a tin ear. Even when you're striking down the death penalty, the convention is to show great respect for the suffering of the victim. But Mrs. Carver was unharmed. Really, that belongs on the list of worst sentences ever written by a Supreme Court Justice.
So Georgia's anomalous law made it easier to strike down the death penalty for rape of an adult. What happens now as more and more states adopt the death penalty for the rape of a child? The public understanding of the harm to children has grown over the years, as has the conviction that persons who commit this crime are hopeless and even inhuman. You may say that you think the Constitution should not be interpreted to take account of the current understanding of what is "cruel and unusual," but the Justices who agree with you can be counted on to accept what the states are doing now. What should the Justices who go by "the evolving standards of decency that mark the progress of a maturing society" say about the death penalty for child rape?
Consider the unintended consequence: authorizing the death penalty will stimulate sympathy for child rapists. Death penalty opponents will be motivated to paint a strong picture of the rapist as a pitiable creature with a terrible mental health problem.
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My opinion is simply that once the punishment for the rape of a child is death, what is stopping a child rapist from doing anything else?
Yes, talk about unintended consequences.
My basic point was not against the death penalty but against applying it too broadly. If he is already going to die for raping the child, why not murder it as well? This is speaking less about possible future consequences and more on immediate thoughts and deeds.
Drethelin, it's hard for me to see a situation where a child rapist would think, 'whoah, I better not harm this child further, then I could be in real trouble'. Once someone gets to the point of raping children aren't they already in pretty bad legal waters?
Sympathy from juries might convince me, but further actions don't.
If there is controversy now regarding the accuracy and efficiency of imposing capital punishment, imagine what it would be like when the alleged crime is child rape and sexual abuse.
"My opinion is simply that once the punishment for the rape of a child is death, what is stopping a child rapist from doing anything else?"
The fact that they've been executed?
The lifetime consequences of child rape are severe. Among adults who were so abused, suicide and drug abuse are common. Psychiatry hospitals are full of their detroyed souls.
How should society treat such monsters, for monsters they are? I'd agree to permanent cages if only they were indeed permanent. Lacking such permanence, a death penalty is needed.
I would like to see some statistics, but it seems like there are more repeat offenders killing and raping these days than, say, in the 40s. Maybe someone should do a study tracking recidivism with the evolution of penalties.
The role of therapy and rehabilitation for these monsters needs to be rethought. Even Freud said, sometimes a cigar is just a cigar. These guys are just bad. Someone who rapes a child should not be on the street.
Hmm.. good point Ann. As I was thinking about writing this comment, I realized my reasoning wasn't as open-and-shut as I thought it was.
Still, there's some primal satisfaction from executing child rapists. I guess my question is what if one party argues it it was consensual? Rape is so hard to prove one way or the other. That person should still be imprisoned for statutory rape, but the death penalty seems extreme.
That said, both Taiwan and Singapore have used the death penalty for the smuggling of drugs and firearms, to great effect. However, these crimes are premeditated in nature, and have substantial physical evidence.
If I remember correctly, when Byron White left the Court, the New Republic published a long article that basically said the Court would be a better place without him. That one line in the Coker decision certainly supports TNR's contention.
While I have no moral problems with executing child rapists in principle, one big issue of concern I have would be the issue of proof. There have been many examples of false accusations of child sexual abuse (the McMartin and Amirault cases come to mind), and this type of accusation tends to bring out the worst type of mix between bad psychology and overzealous prosecution (suggestive interrogations of children, etc.). I know that capital punishment for murder has similar issues of concern, but at least in most murder cases you have a corpse to deal with, which at the very least shows that a murder did in fact occur, while in child sexual abuse cases there can be a lack of physical evidence that the crime occurred to begin with.
Also, Patca, you are correct. Sex offenders have higher and longer recidivism rates than other offenders. Armed robbery is a young man's game, while sexual molestation is a crime people commit well into their later years.
There is no such thing as rehabilitating a pedophile. It's like trying to convince a straight male to stop being attracted to women. It's just not possible. Pedophiles should get life in prison, no chance of parole; unfortunately, as pogo pointed out, they seem to get let out again and again.
I am against the death penalty, but if that is what it takes to finally stop the cycle of releasing pedophiles to do more harm and ruin more lives, then I can't really find it in me to oppose it.
I tend to agree that once the death penalty is on the table, a criminal would kill in order to minimize the possibility of a witness against him. Another problem here is that juries will be conflicted, and I think we could see more acquittals of accused child rapists, especially in family situations. They might be concerned that the child was coached into lying. And how can we forget the judge who, in throwing out charges against an accused child rapist, said that the 5-year-old girl in question was "unusually seductive"? We'll also likely see more plea agreements to lesser charges, to avoid jury trials. Long prison terms, and post-prison restrictions are better, I think, than the death penalty for child rape, because of the possible backlash and unintended consequences.
I agree that making child rape a capital crime will motivate death penalty opponents to push for extremely undesirable things - like rehabilitation, which so clearly does not work in these types of cases.
I also think another unintended consequence will be the lengths to which defendants on death row drag out their cases. A child will be an adult by the time their rapist is executed - and will have spent their entire lives dealing with trial after trial.
I disagree with John Jenkins who says I think detterrence is simply unpersuasive as to punishment. I think unlikely deterrence is unpersuasive. It doesn't matter how bad the punishment is if you don't think you will be caught. I think that also explains your seatbelt theory - people believe it is far more likely to receive a ticket than to suffer a serious crash.
WRT Coker,
I think that states should have the right pass laws allowing (but not requiring) the death penalty for crimes committed by a person already convicted or indited for a crime in which life in prison is an option.
That would cover the sorts of crimes for which it actually might have a deterrent impact. Things like:
1. killing a prison guard by a convict already serving life
2. the Coker case, with an escaped prisoner
3. murder of witnesses during the course of a trial, (favorite of drug dealers and gangs)
I have a daughter. If someone rapes her, he will die.
It would be better for the state to do it than for me to do it. The state will be more careful with the evidence, won't run the risk of doing collateral damage, has better resources, etc.
I have a daughter. If someone rapes her, he will die. It would be better for the state to do it than for me to do it.
I remember watching a show with my Dad where the father of a child who had been molested shot the guy as he was led down the hall in the courthouse.
I'll never forget my father - the lawyer - had only the comment that he really should have thought of a better way to do that.
Jennifer: I think I'd like your dad, a lot.
Marghlar: I'm probably misreading your comment, but doesn't the Circuit Judge's story tend to prove the death penalty deterred a crime?
marginal deterrence isnt really the legal issue here but the practical one.
legally:
does "cruel and unusual" have anything to do with harshness of punishment, or are "cruel" and "unusual" blanket terms? is it "cruel" to execute people for speeding tickets, or is that instead simply out of proportion? is disproportionate punishment unconstitutional?
the Coker ruling implies that disproportionate = cruel, but I'm not sure that's really on target. I'm against the death penalty because I think it's both cruel and unusual for the state to take human life, but given that it hasn't been struck down I don't see anything stopping states from using it on any offense they agree upon (speeding tickets included).
Hi Ann,
The unintended result of the dealth penalty for rape would be an increase the the chances that the rapist would murder the victim.
Most of the time, the only witness to a rape is the rape victim. Therefore a rapist decreases his chances of being caught and convicted if the victim is killed. If the penalty is the same for rape and for murder, what incentive would a criminal have to let his victim live?
dbp
How do they define "rape of a child?"
I've neverthought Coker was rightly decided, but I am reconciled to the unlikelihood that it will ever be overturned. In many ways, it is actually more repugnant a decision than were Roper and Atkins: those cases merely declared an imaginary Constitutional restraint on whether someone who may or may not bear full culpability for their actions could be executed; Coker simply declared that rape isn't a big enoguh deal for the death penalty. I dissent.
My only concern where the death penalty is concerned is the standard of evidence, a concern which applies a fortiori in rape. I really think that there is a case to be made that conservatives have developed a tin ear in overreactiontoliberal shrillness during the 1970s and 1980s. Certainly the impression one gets from Edward Lazarus' account is that the Supreme Court was exasperated with a continual delaying use of repeat habeas corpus, until eventially the pendulum swung too far against it: Herrera v. Collins is STRONG medicine.
If, however, it could be proved beyond any doubt that the person was guilty of rape, particularly of someone who by definition cannot consent, I would support the death penalty with gusto. Heck, I'd lead the lawsuit to prove that hanging, drawing, emasculation and quartering wasn't unconstitutional.
JJenkins:
I'm not sure I buy the issue of whether the DP is cruel and unusual has been adequately decided. while most of Furman v. Georgia was decided on the unfair application of the death penalty, 2 justices (Brennan and Marshall) agreed with my view that the death penalty contradicts the current evolving moral standards of our society.
I will concede that "disproportionate punishment is inconsistent with the 8th Amendment's cruel and unusual standard". my last comment was quite off the cuff and didn't adequately consider the first part of the amendment (excessive bail/fines)
ziemer - that wasn't a knock, i was just trying to change the subject.
2 justices (Brennan and Marshall) agreed with my view that the death penalty contradicts the current evolving moral standards of our society.
I don't agree that the meaning of the Eighth Amendment turns on "the current evolving moral standards of our society" (the Trop test),and I don't agree that - even if it did - the death penalty is even remotely at variance from the prevailing moral standards of society.
Simon said the following:
"If, however, it could be proved beyond any doubt that the person was guilty of rape, particularly of someone who by definition cannot consent, I would support the death penalty with gusto."
Anyone who has ever had to try a number of such cases can tell you that it's rare for the standard of "beyond all doubt" to be met. The most heinous cases, those involving very young children, are for obvious reasons the most reliant on the testimony of adult intermediaries, such as outcry witnesses and child psychologists, to interpret the victim's statements and behavior for the jury.
JJenkins:
of course proportionality makes sense , but that doesnt mean that's there in the constitution either, necessarily - though i'd (now) say that it is in the 8th.
I can see how opposing the DP outside of constitutional arguments makes more practical sense than letting judges rule (Roe), but I'm not enough of an originalist to see the text as fixed in meaning (vs. being judged by evolving moral standards). as to whether that test has been passed, Simon's probably right about that - my wanting it so doesn't make it so.
a question: to what degree is a Supreme Court member to weigh his/her own values in these situations? or does it simply need to be the evolving moral standards of our society? our legislative system elects representatives rather than holds plebescites, allowing one person's individual judgement to contradict the will of the people (hopefully, in favor of the best interests of the people). and, the judicial interpreters?
Mrs. Carver was unharmed seems obviously to refer to further harm from the time she was taken away in the car, not harm from a baseline of before she was raped.
At least that seems obvious to me...
It's not a matter merely of determent, which clearly is significant, yet also a matter of extermination. Noone can finally answer what motivates human behavior, ill or good, yet the sickest of it deserves to be ended, for the greater benefit of all.
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